In re the Claim of Raphael — 239 A.D.2d 652

Majority

p. 652

In the Matter of the Claim of Lawrence Raphael, Appellant. John E. Sweeney, as Commissioner of Labor, Respondent.

[656 NYS2d 576]

Appeal from a decision of the Unemployment Insurance Appeal Board, filed February 26, 1996, which ruled that claimant was disqualified from receiving unemployment insurance benefits because he voluntarily left his employment without good cause.

Claimant was employed at an airport as a customer service support agent. When his department was "privatized”, claimant was given the option of accepting a part-time position in another department or of taking advantage of an early retirement program. Claimant chose to retire. The Unemployment Insurance Appeal Board subsequently ruled that claimant was disqualified from receiving unemployment insurance benefits on the ground that he voluntarily left his employment without good cause.

An individual who chooses to participate in an early retirement incentive program when there is continuing work available to him has not left his employment for good cause (see, Matter of Fisher [Levine], 36 NY2d 146 , 153; Matter of Russo

p. 653

[Sweeney], 235 AD2d 895 ). In the instant matter, substantial evidence supports the Board’s finding that work was available at the time of his retirement but that claimant nonetheless chose to take advantage of the employer’s early retirement program. The Board’s ruling that claimant is disqualified from receiving benefits is, accordingly, affirmed.

Cardona, P. J., Mikoll, Mercure, Spain and Carpinello, JJ., concur. Ordered that the decision is affirmed, without costs.

Cases cited

In re the Claim of Fisher 36 NY2d 146 N.Y. 1975-02-27 at 153 p. 652
In re the Claim of Russo 235 AD2d 895 N.Y. App. Div. 1997-01-23 p. 653